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Yearly Archives: 2013

“It’s like Black Friday for gay people”

Last Friday, deep-red Utah became the latest state to legalize same-sex marriage, thanks to a federal district court ruling. Unlike the recent ruling of the New Mexico Supreme Court, which focused on state legislative language that did not explicitly specify that marriage was restricted to opposite-sex couples, U.S. District Judge Robert J. Shelby relied on federal due process and equal protection grounds in developing an opinion that offered little consolation to defenders of traditional marriage. (For those of you who think that the two major parties are indistinguishable, note that Judge Shelby is an Obama appointee.)

The initial ruling certainly grabbed my attention, but what happened next caught me by surprise as well. District court victories are hardly meaningless, but the euphoria often evaporates once an appellate court has had its say. On Tuesday, however, the Tenth Circuit Court of Appeals, a circuit hardly known for its liberalism, denied Utah’s request for an emergency stay, thus leaving the door open for same-sex couples in Utah to rush to county clerks’ offices before the district court ruling can be reversed.  (The quotation in the header comes from a woman seeking a marriage license in Salt Lake City; I wonder whether anyone in a religiously conservative state shared my impression that the couples resembled the Israelites scrambling to flee Egypt before the pharaoh could retract his grant of freedom.) As of today, at least 700 couples have been wed in the state, and barring a stay from the U.S. Supreme Court, even expedited proceedings from the Tenth Circuit will leave ample time for many more couples to add to that number.

The impact of the Tenth Circuit’s ruling goes beyond its immediate impact on couples seeking to wed, though. It also foreshadows how it might handle the eventual appeal. A refusal to stay the lower court suggests that the state failed to demonstrate either an irreparable harm from allowing the ruling to remain in effect, or a likelihood of prevailing on the merits in its appeal. The Tenth Circuit could deny an emergency stay and still reverse the district court, but the same factors that resulted in a denial of a stay would presumably enter into the question once the appeal is heard.

Given recent events in Ohio and New Mexico, it’s inevitable that the Supreme Court will soon have to tackle the question left unanswered by its landmark ruling in Windsor last term: whether states may outlaw same-sex marriage or refuse to recognize same-sex marriages performed in other states. We’ll learn then whether Justice Kennedy’s appreciation of federalism outstrips his appreciation of gay rights. But the willingness of legal activists to test him reflects a certain confidence in the Court’s direction on the issue. Until fairly recently, a prominent line of argument among gay-rights activists was that the battle should focus primarily on expanding the realm of marriage equality on a state-by-state basis, lest an unfavorable Supreme Court ruling set back the cause nationwide. Indeed, David Boies and Ted Olson were viewed skeptically, by such stalwarts as the Lambda Legal Defense Fund and Gay and Lesbian Advocates and Defenders,  for challenging California’s Proposition 8 prematurely and leaving the movement vulnerable to a judicial setback.

But victories at the Supreme Court last year have emboldened gay-rights advocates to bring suit in more challenging terrain. Of the three states where courts have spoken most recently, New Mexico presented the lowest-hanging fruit, as its laws did not explicitly restrict marriage to opposite-sex couples. There, a court simply had to choose to rely on the state law’s plain meaning, rather than default to the traditional definition of marriage. The Ohio court did not rule on same-sex marriage directly, but in holding that death certificates had to recognize as widowers same-sex spouses married in other states, it presented a logic that will be very hard to confine to the narrow legal question presented, and will feature prominently in attacks on the non-recognition language in the federal Defense of Marriage Act. And, as noted earlier, the Utah court gave equal protection and due process a broad reading in invalidating a state constitutional ban on same-sex marriage. The variety of legal challenges, coupled with their ubiquity, signals a certain confidence that the movement for marriage equality will not be turned back. For me, the interesting unanswered question is not whether the Supreme Court will have its Loving v. Virginia moment, but whether intervening state-level action will make the Court’s ruling superfluous in all but the most diehard holdout states.

No pusherman = no death penalty?

“Default–the two sweetest words in the English language!” — H.J. Simpson

Given how much heat the Supreme Court has taken from conservatives for drawing upon other countries’ practices to support barring executions of minors and developmentally disabled defendants, it would be ironic if capital punishment in the United States were to meet its demise because of opposition from foreign actors. In a recent piece at National Journal, Dustin Volz describes a scenario in which states with the death penalty will increasingly find themselves unable to carry out executions because of shortages of drugs used in the standard three-drug lethal injection protocol. (I refuse to adopt the increasingly common reference to a three-drug “cocktail,” lest I besmirch the good name of adult beverages.) The causal chain looks something like this:

  1. States find themselves short-handed because of a combination of European Union regulation and individual pharmaceutical companies’ decisions not to export drugs to the U.S. that might be used to perform executions.
  2. States would prefer to substitute other drugs for those no longer readily available, as when Florida last month replaced pentobarbital with midazolam hydrochloride when executing William Happ.
  3. Any use of substitute drugs will be challenged in court on Eighth Amendment grounds. Attacks will take two forms. In the case of drugs produced by compounding pharmacies, which mix drugs customized for particular individuals, litigants will claim that insufficient regulation of such pharmacies will raise the probability that the drugs will cause excruciating pain to those being injected. More broadly, death penalty foes will charge states with adopting drugs “because they are available, not because they know anything about those drugs,” as Deborah Denno, an abolitionist expert at Fordham Law School, puts it. The threat of litigation will also discourage American drug manufacturers from developing new chemicals to be used in executions.
  4. States, accounting for the costs of procuring the necessary drugs and the time and expense of prolonged litigation, will take more seriously the option of abolishing the death penalty outright. For example, in Arkansas–hardly a state known for its solicitude toward criminal defendants–both the governor and attorney general have publicly indicated a willingness to do away with capital punishment. At the same time, other methods of execution will be deemed infeasible because of a combination of grisliness and unwillingness of medical personnel to participate.
  5. Capital punishment begins to die a bloodless death.

For death penalty abolitionists, who have been forced to battle on the margins because of the Supreme Court’s hostility to both frontal attacks on capital punishment and challenges based on racial bias in sentencing, this scenario represents the most promising way to see their goals fulfilled. At the same time, however, there are good reasons to think that the death penalty will not disappear so easily.

For one, states that are committed to maintaining capital punishment will not abandon the practice lightly. For states that are already leaning toward abolition, a shortage of drugs might provide political officials with crucial cover. But for the states where execution is a seemingly indelible part of the penal landscape, drug shortages are a surmountable obstacle. Indeed, states such as Florida, Ohio, and Texas have gone to great lengths to procure chemical work-arounds in response to shortages of preferred drugs. The threat of litigation is not going to lead these states to curtail the death penalty; if anything, they might welcome the opportunity to demonstrate to their constituents their commitment to a popular policy. In the worst-case scenario, death-penalty states wanting to maintain the policy would have to reconsider now-abandoned methods of execution, but barring an unprecedented Supreme Court ruling labeling all forms of execution to be cruel and unusual punishment, they would not have to stop executing people altogether.

And while the Supreme Court has demonstrated a willingness to ban capital punishment against particular types of defendants, it has shown little appetite for challenging the practice itself, or even particular methods of performing executions. When the three-drug protocol was challenged in 2008 as cruel and unusual, because the threat of improper administration of the first drug (sodium thiopental) would lead to excruciating pain from the other two drugs (pancuronium bromide and potassium chloride), the Court ruled that the protocol did not present a “substantial risk of serious harm.” The existence of alternative protocols does not call into doubt the prevailing method of administering lethal injections. So unless plaintiffs can demonstrate that chemical alternatives are not just worse than the prevailing three-drug protocol, but also fall below the line regarding safety, they will be unlikely to convince the Court to effectively foreclose lethal injections.

In short, those who want to see the death penalty eliminated will probably not be able to assume that anonymous pharmaceutical company decision makers and European Union regulators can accomplish this task. If the death penalty is to be outlawed, and not just allowed to disappear de facto, it will happen because someone takes affirmative, highly visible, politically contentious action to make it so. It’s a tougher hill to climb, but climbing it would feel like a victory duly earned.

Opening Day at the Supreme Court

With the showdown over the budget and the debt ceiling dominating the Washington landscape, it is tempting to overlook the start of the new term at what Alexander Hamilton, in Federalist #78, labeled the “least dangerous branch” of the national government. But no government shutdown could prevent the Supreme Court from beginning its new term on the customary first Monday in October. As one might expect, previews of the upcoming term abound.

Unfortunately, from the standpoint of someone looking for compelling Opening Day news to hook his undergraduates, today’s oral argument suggested that the attorneys on both sides could have used a longer pre-season:

The issue in Madigan v. Levin (docket 12-872) is an important one: how much power does Congress have to take away an individual’s right to sue over a violation of constitutional rights, by passing a substitute civil rights law?  But that is an important issue only if it actually remains in the case, and the Court expressed doubt about that from the very beginning to the end of the one-hour hearing.  Several Justices openly suggested that the case should simply be dismissed or sent back to lower courts to clean up the mess.

With a docket typically featuring about 80 cases per term, the justices can ill afford to devote scarce time to cases that it later regrets having accepted for review. It can make its mistakes disappear by dismissing cases as improvidently granted, or DIG for short (which would sound cooler if old-school hipsters had gained some traction on the Court). But it would prefer not to have made the mistakes in the first place. At least tomorrow’s oral argument, concerning a challenge to federal law capping how much campaign contributors may donate to federal candidates in each two-year election cycle, is unlikely to be as anti-climactic as today’s action.

Mary Beth Tinker, fighting for your right to fight

In a couple of weeks, my Supreme Court class will be discussing freedom of expression, and when we do we will have occasion to discuss Tinker v. Des Moines, a Warren Court ruling striking a blow for the free speech rights of students. Last Monday, I was privileged to meet one of the plaintiffs in that case, Mary Beth Tinker. Tinker has devoted herself to a public speaking tour to promote the value of free expression and the need for students to act in its defense. Tinker was not the first famous (in my world, anyhow) Supreme court litigant I had met in person–Fred Korematsu holds that honor–but the prospect of meeting her punctured whatever level of jadedness I happen to be maintaining these days.

The presentation was informal, in a way that reflected Tinker’s rapport with young people that she honed during her career as a pediatric nurse, and it didn’t provide much about how the ACLU crafted a winning legal strategy on her behalf. Some of my students who had prior knowledge of the case were hoping for such inside dope (I was too, truth be told), but I gather that Tinker had tailored her presentation to reach students who were being introduced anew to the subject. I did learn how her parents’ activism on behalf of civil rights, and their willingness to pay a personal price for their actions, inspired her to protest U.S. involvement in Vietnam by wearing a black armband to school. In an era featuring little official tolerance for non-conformity in dress, never mind for student protest, this form of expression carried substantial risks, especially given the lack of due process rights available to minors then.

What I hoped my students had taken away was the importance of popular involvement in protecting civil liberties. There’s often a tendency to think that we should leave such matters to professional activists, who have both the time and wherewithal to maintain vigilance. I certainly don’t mean to downplay the role of such interest groups as the ACLU; many landmark cases, including Brown v. Board of Education and, yes, Tinker, might have failed to launch without the sponsorship of groups dedicated to advancing rights. But while interest group involvement can produce groundbreaking legal victories in the face of popular resistance, sustaining these victories over the long haul requires a movement that can overcome such resistance by building broader public support for civil liberties.

Admittedly, one could label Mary Beth Tinker a professional activist, given her current endeavor. But her career path is quite distinct from the typical path taken by legal activists. And while Tinker does not discourage students from litigating in defense of their rights, she also does not stress the courtroom as the primary venue within which students should fight. Rather, she advocates for student activism to take many different forms, few of which require the aid of legal professionals. Her message had a receptive audience among the self-selected students attending her talk, but I was disheartened not to have seen a larger crowd, even accounting for the possibility that the 9:30 AM start caused scheduling conflicts for students who might otherwise have attended. So her project has some work to do.

Robin Thicke doth protest too much?

Having returned from a hiatus that included hosting friends and attending my youngest brother’s wedding, I realized that my blog’s tag line has promised pop culture ephemera that I have failed to deliver. Fortunately, sometimes pop culture and the law collide in entertaining fashion:

In order to shield “Blurred Lines,” the hottest hit of the summer, Robin ThickePharrell Williams and Clifford Harris Jr. are going to court.

A lawsuit was filed Thursday in California federal court by the trio against Marvin Gaye‘s family and Bridgeport Music, which owns some of Funkadelic’s compositions. At issue are complaints about similarities between “Blurred Lines” and at least two songs….

The suit claims the Gaye family is alleging that “Blurred Lines” and Gaye’s “Got to Give It Up” “feel” or “sound” the same, and that the “Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.”

As for Funkadelic, there’s said to be claimed similarity between Thicke’s hit and Funakedlic’s “Sexy Ways.”

“But there are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements,” states the lawsuit. “Plaintiffs created a hit and did it without copying anyone else’s composition.”

So what we have here is preemptive litigation. Rather than wait for the Gaye family and Bridgeport Music to sue, Thicke has beaten them to the courtroom, in the hope of receiving an authoritative statement that “Blurred Lines” has not infringed any copyrights.

I might not be an expert on copyright law, but I know more than a few things about Funkadelic, and I must confess that I can’t hear any of “Sexy Ways” in “Blurred Lines.” And someone who knows much more about Funkadelic than I do agrees:

George Clinton, who once led Funkadelic and has feuded with Bridgeport and its leader over the years, tweets, “No sample of #Funkadelic‘s ‘Sexy Ways’ in @robinthicke‘s ‘Blurred Lines’ – yet Armen Boladian thinks so? We support @robinthicke@Pharrell!”

The Marvin Gaye song strikes me as more problematic. There’s nothing as derivative as what Vanilla Ice did to Queen’s “Under Pressure,” but while I wouldn’t say that the Gaye family clearly has a winning case, it can take some pride in how many listeners hear this song and associate it with this song. Your thoughts on the relationship between the two songs?

Just when Texas thought it was out…

Texas, along with several other states, thought the Supreme Court’s ruling in Shelby County v. Holder had given it carte blanche to revamp its election laws and district maps. Previously, Section 4 of the Voting Rights Act had defined the state, along with much of the former Confederacy and scattered jurisdictions elsewhere, as a covered jurisdiction, meaning that it was required under Section 5 to have all changes in electoral laws and practices pre-cleared by the Justice Department or a three-judge District Court panel. But once the Court had deemed Section 4’s formula to be as passe as a Nehru jacket, and consigned that provision to constitutional oblivion, Texas rushed to re-enact a redistricting map and a stringent voter ID law, neither of which would have withstood Section 5 scrutiny. (Indeed, the redistricting map at issue had been held by a federal court to have been enacted with discriminatory intent, as opposed to being formally race-neutral but having disparate impacts on minority communities.)

It remains to be seen whether Congress will re-enact Section 4 with an updated coverage formula. Republicans lent substantial support to the 2006 renewal of the Voting Rights Act, but the current Republican congressional caucus has shown little hesitation to jettison many ideas it once championed. Even if Section 4 renewal stalls out–and why should it differ from every other piece of meaningful legislation to get sucked into the Bermuda Triangle that is modern Washington?–the Obama administration is not about to let hard-earned voting rights protections erode without a fight:

The Obama administration on Thursday moved to protect minority voters after last month’s Supreme Court ruling striking down a central part of the Voting Rights Act of 1965, with the Justice Department asking a court to require Texas to get permission from the federal government before making changes.
In a speech before the National Urban League in Philadelphia, Attorney General Eric H. Holder Jr. said the request would be the first of several legal salvos from the administration in reaction to the Supreme Court’s decision. “My colleagues and I are determined to use every tool at our disposal,” he said, “to stand against such discrimination wherever it is found.”
The specific weapon being wielded by the Justice Department is Section 3, under which federal oversight can be imposed on jurisdictions that have been proven to have acted in discriminatory fashion. (Lyle Denniston offers an impressively detailed and readable account of the Justice Department’s move, and the historical context behind it, at SCOTUSBlog,) Neither Attorney General Eric Holder nor voting rights scholars believe that Section 3’s “bail-in” can substitute for the pre-Shelby County status quo, under which covered jurisdictions had to prove that their proposed changes were not enacted for illicit reasons. The Section 4/Section 5 combination could prevent electoral law changes from ever taking effect, while the Section 3/Section 5 combination comes into play only after these changes have taken effect and possibly caused some damage. And under Section 3 (and Section 2, which has nationwide effect and was untouched by the Shelby County litigation), the Justice Department must clear a high bar in showing that proposed changes were enacted for discriminatory purposes, as opposed to making covered jurisdictions show that they weren’t. But even if Justice can’t make Texas retract its electoral maps and voter ID law, it can still serve three valuable purposes through this litigation:
  1. It can display the inadequacy of existing Voting Rights Act provisions to address the kinds of measures being enacted in various states. While it’s fair to assume that the post-Shelby County regime offers less protection than did its predecessor, the case for strengthening the Act will be easier to make once there’s a concrete demonstration that Sections 2 and 3 don’t provide enough punch on their own.
  2. It can offer Congress a path forward, should Congress choose to move seriously on voting rights. A coverage formula based on recent violations, rather than decades-old turnout and registration data, should pass muster with the Supreme Court, which had telegraphed its concern about the coverage formula in its 2009 ruling in Northwest Austin Municipal Utility District Number One v. Holder. Such a new formula might also have advantages in getting through Congress; because it would apply nationally, Southern states would feel less singled out. Ari Melber has advocated a “Two Strikes and You’re In” policy along these lines, and his defense of it is well worth reading.)\
  3. Finally, the litigation can raise the salience of voting rights ahead of the 2014 midterm elections. To have any chance of success, Democrats need a midterm electorate that looks like the 2012 electorate, and not the older, whiter 2010 electorate. Getting minority and young voters to the polls in midterm years presents a real challenge for Democrats, but being able to trumpet claims of voter suppression might help them to meet that challenge. 


Get us some judges–stat!

Today, Dylan Matthews at the Washington Post illustrated the magnitude and consequences of chronic understaffing in the federal judiciary. The highlights (lowlights?):

  • The total number of vacancies in lower federal courts grew by about 50 percent during Obama’s first term in office.
  • Obama has nominated judges at a slower rate than his two most recent predecessors.
  • The interval between nomination and floor vote has grown substantially for district court judges, but not for court of appeals judges, where we would expect the higher stakes to produce greater incentive for senators to obstruct.

Presidents often get credited and blamed for circumstances beyond their control, and so much of the critique of Obama’s presidency subscribes to what Brendan Nyhan memorably labeled the “Green Lantern Theory of the Presidency,” in which failure to achieve presidential policy goals is purely the product of insufficient presidential gumption. But even if multiple actors bear responsibility for insufficient progress on staffing the courts, Obama’s hesitance to place more nominees in the pipeline represents a glaring unforced error, to borrow Jonathan Bernstein‘s term. If vacancies remain because Republican senators won’t engage, as per longstanding custom, with the White House to aid in selecting district court nominees, as the Alliance for Justice claims, then the president should nominate unilaterally and let the chips fall where they may.